Rebecca T. Padilla, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency. Appeal No. 0120102224 Agency No. 1H329001709 DECISION On April 28, 2010, Complainant filed an appeal from the Agency's March 16, 2010, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission MODIFIES the Agency's final decision. ISSUE PRESENTED Whether the Agency was correct in finding that Complainant was not subjected to unlawful discrimination based on race and disability as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Mail Processing and Distribution Center in Lake Mary, Florida. Complainant is a permanent light duty employee with medical restrictions. Complainant's restrictions, among other things, limited her in lifting, pulling, pushing, walking, standing, and kneeling. On May 26, 2009, and again on June 16, 2009, Complainant requested to change one of her off days from Monday to Thursday for the week of June 27, 2009. Complainant wanted to attend her son's court appearance. However, her Supervisors (S1) and (S2) denied her request. Complainant also submitted Form 3971, Request for or Notification of Absence on May 29, 2009, requesting 8 hours of annual leave for July 2, 2009, to attend her son's court appearance. S1 denied her request for leave and a change of schedule with the notation "Quota full, resubmit at a later date." On June 16, June 23, and on September 8, 2009, Complainant was sent home by management indicating to her that there was no work available for her to perform. As a result, Complainant was approved for one hour of leave on June 16, 2009, 6.29 hours of leave on June 23, 2009, and 7.23 hours of sick leave on September 8, 2009. Further, Complainant was among 22 employees management drafted to work the July 4, 2009 holiday. On September 2, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Vietnamese) and disability when: 1. on May 27, 2009 and June 16, 2009, her requests for a schedule change were denied; 2. on June 16, June 23, and September 8, 2009, she was sent home and told no work available; 3. on July 4, 2009, she was forced to work a holiday; and 4. on May 29, 2009, her leave request for July 2, 2009 was denied. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that Complainant with respect to claims (1), (3), and (4) failed to establish a prima facie case based on race. Specifically, the Agency found that Complainant was not subjected to an adverse action. In this regard, the Agency found that Complainant did not establish her entitlement to a change of schedule or an approval of leave on July 2, 2009. The Agency further found that there was no evidence that not approving her change of schedule or leave request, and requiring her to work on the 4th of July holiday caused any loss or harm or resulted in disciplinary action or the loss of pay or benefits. The Agency also found that Complainant failed to establish a prima facie case based on disability. In this regard, the Agency found that Complainant was not an individual with a disability. Specifically, the Agency found that Complainant failed to demonstrate that she was substantially limited in any major life activity. The Agency also noted that Complainant failed to establish that she was a qualified individual with a disability. Further, the Agency found that it accommodated Complainant for her disability since Complainant's request for a permanent light duty assignment was reviewed by the Reasonable Accommodation Committee on May 21, 2004. Further, the Agency found that it articulated legitimate nondiscriminatory reasons for its actions. Specifically, in regards to claims (1) and (4), the Agency found that Complainant was denied July 2, 2009 as an off-day due to holiday staffing issues based on the needs of service. In regards to claim (2), the Agency found that Complainant was sent home early on June 16, June 23, and September 8, 2009, due to low mail volume. In this regard, the Agency noted that there was no work available for Complainant within her medical restrictions. As to claim (3), the Agency found that Complainant was required to work the July 4, 2009 holiday because according to the Mid-Florida American Poster Workers Union (APWU) Local Memorandum of Understanding, full time clerks are to be scheduled to work overtime according to inverse seniority. The Agency also found that Complainant failed to demonstrate that its nondiscriminatory reasons were pretext for discrimination. Lastly, the Agency found that Complainant failed to show that its actions were motivated by discriminatory animus. CONTENTIONS ON APPEAL Complainant has not filed a brief on Appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). To establish a prima facie case of disparate treatment on the bases of race, Complainant must show that (1) she was a member of a protected class; (2) she was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) she was treated differently than similarly situated employees outside her protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Department of Defense, EEOC Appeal No. 0120070257 (April 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (January 9, 1998); Trejo v. Social Security Administration, EEOC Appeal No. 0120093260 (October 22, 2009). Here, regarding all claims we find that Complainant has established a prima facie case of discrimination based on race. In this regard, we find that Complainant is a member of a protected class based on her Vietnamese race. Further, we find that Complainant was subjected to adverse actions and was treated less favorably than other employees outside of her protected class. In this regard, Complainant, was not allowed to have July 2, 2009 off, was made to work the July 4 holiday, and was forced to take leave after being sent home early. Further, the record demonstrates that for each claim, Complainant identified similarly situated individuals outside of her protected class who were treated more favorably. As such, we find that Complainant has established a prima facie case of discrimination with respect to race on all claims Claims (1) and (4) Upon review we find that the Agency has failed to establish a legitimate nondiscriminatory reason to rebut Complainant's prima facie case of race discrimination. Vague, general averments are not enough to rebut a prima facie case and are not considered legitimate nondiscriminatory reasons for an Agency's action. Wilson v. Social Security Administration, EEOC Appeal No. 01A50140 (March 10, 2006) (finding that an agency's non-descriptive and vague explanation did not satisfy its burden to produce a legitimate nondiscriminatory reason); see also Farrow v. Department of the Air Force, EEOC Appeal No. 01880309 (June 3, 1988) (citing Loeb v. Textron, Inc., 600 F.2d 1003, n.5, 1011, 1012 (1st Cir. 1979)). Further, if a complainant establishes a prima facie case, and 'the employer is silent in the face of the presumption (prima facie case), the court must enter a judgment for the [complainant]....' Burdine, 450 U.S. at 254. Here, S1 and S2 both testified that Complainant could not have July 2, 2009 off, because the quota was full and due to holiday staffing. We find that the Agency's assertion of "quota full" and "holiday staffing" are too vague and ambiguous and are not sufficient to rebut Complainant's prima facie case. As such, we find that the Agency failed to carry its burden to articulate a legitimate, nondiscriminatory reason for its actions with respect to claims (1) and (4). Because the Agency has failed to set forth, with sufficient clarity, its reasons for denying Complainant's request to take July 2, 2009 off, she has not been given a full and fair opportunity to demonstrate that those reasons are pretext. Therefore, since Complainant has established a prima facie case of race she must prevail without having to make any demonstration of pretext with respect to claims (1) and (4).1 Claim (2) To establish a prima facie case of disability discrimination under a disparate treatment theory, the complainant must demonstrate that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) she was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination. Carney v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01986113 (August 3, 2000) (citing Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981)). Assuming Complainant established that she was a qualified individual with a disability, we find that she failed to establish element (3). She failed to proffer evidence which would show that there was available work within her medical restrictions, for which she could perform. Further, Complainant failed to proffer evidence that would establish that other similarly situated employees were provided work that she could perform. Therefore, we find that he failed to establish a prima facie case of disability discrimination with respect to claim (2). As noted above, although Complainant has established a prima facie case of race discrimination, we find that the Agency has articulated a legitimate nondiscriminatory reason for its action. Namely, that the Agency found that Complainant was sent home early on June 16, June 23, and September 8, 2009, due to low mail volume since there was no work available for Complainant within her medical restrictions. In this regard, the Agency noted that Complainant's restrictions reflected the fact that she could not operate a machine that other employees could, which Complainant does not dispute.2 Furthermore, we find that Complainant has not provided any evidence of pretext in the record. Also, the record is devoid of any evidence that the Agency's actions were motivated by discriminatory animus towards complainant's disability or race with respect to claim (2). Claim (3) In regards to claim (3), we find that the Agency has established a legitimate nondiscriminatory reason for its action. Specifically, that Complainant was required to work the July 4, 2009 holiday because according to the Mid-Florida American Poster Workers Union (APWU) Local Memorandum of Understanding, full time clerks are to be scheduled to work overtime according to inverse seniority. Specifically, the Agency noted that 22 employees, including Complainant were required to work on July 4, 2009. The Agency noted that Complainant's inverse seniority ranking fell within the range of the rankings of the 22 employees that were drafted to work on the holiday. Also, we find no evidence of pretext or that the Agency's actions were motivated by discriminatory animus with respect to claim (3).3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order with respect to claims (2) and (3). We REVERSE the Agency's final order with respect to claims (1) and (4), and REMAND claims (1) and (4) to the Agency to take remedial actions in accordance with this decision and Order below. ORDER The Agency is ordered to take the following remedial actions: 1. The Agency is directed to provide EEO training for the responsible management officials addressing their responsibilities with respect to eliminating discrimination in the workplace with an emphasis on Title VII. 2. The Agency shall consider taking disciplinary action against the responsible management officials. The Agency shall report its decision within thirty (30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 3. The Agency shall undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. 4. The Agency shall post the attached notice, as detailed below. The Agency is further directed to submit a report of compliance, as is provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action listed in this order has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Mail Processing and Distribution Center in Lake Mary, Florida copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations ___9/23/10_______________ Date 1 As the Commission is finding in favor of Complainant with respect to race discrimination and awarding all appropriate remedies, there is no need to address Complainant's disability claim with respect to claims (1) and (4). 2 The Agency does not name the machine that Complainant could not operate due to her restrictions. However, Complainant does not dispute that she could not operate this machine in the record. 3 With respect to claim (3), we do not find that Complainant established a prima facie case of disability discrimination, because, even assuming that she is a qualified individual with a disability, there is no persuasive evidence that she was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination. ?? ?? ?? ?? 2 0120102224 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120102224